Does NCAA face more concussion liability than NFL?

Jul. 25, 2013
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Adrian Arrington, a former college football player who is now one of the plaintiffs in a concussion lawsuit against the NCAA, poses with his daughters Andria (left) and Ayana (top center), and Isaiah Dye, his girlfriend's son. / Bradley Leeb for USA TODAY

by Rachel Axon, USA TODAY Sports

by Rachel Axon, USA TODAY Sports

Adrian Arrington would like to drive a car again. A 27-year-old former college football player, he'd like to be allowed to work. He'd like to be left alone with his three young children without fear of them witnessing him having a seizure.

Nearly four years after concussions ended his playing career, Arrington can do none of those things. Instead, he relies on disability payments. He hopes for relief from daily migraines and seizures so frequent and severe they left him with a torn rotator cuff in his shoulder that had to be surgically repaired.

Since ending his playing career at Eastern Illinois in 2009, Arrington has sought relief from the long-term effects of at multiple concussions he suffered in college.

"My life is in shambles right now," he told USA TODAY Sports. "I was a student-athlete. I was captain of the team.

"I'm on welfare now."

Arrington is a named plaintiff - along with former Central Arkansas football player Derek Owens, former Ouichita Baptist University soccer player Angela Palacios and former Maine hockey player Kyle Solomon - in a concussion lawsuit against the NCAA.

Filed by Arrington in U.S. District Court in Northern Illinois in 2011, the case moved forward last week with the plaintiffs filing for class-action certification, and citing an array of potentially damning internal NCAA emails.

Alleging that the NCAA failed its duty to protect athletes, the lawsuit seeks not only damages for former athletes who have suffered the long-term effects of concussions, but also for a change in the NCAA's guidelines and the creation of a medical monitoring class to track athletes' health after they leave school.

When David Klossner, the NCAA's director of health and safety, pushed in early 2010 for stronger guidelines regarding concussions, Ty Halpin, the director of playing rules administration, wrote to a colleague, "Dave is hot/heavy on the concussion stuff. He's been trying to force our rules committees to put in rules that are not good - I think I have finally convinced him to calm down."

Despite its potential impact, the lawsuit has been overshadowed by others - namely a name and likeness anti-trust lawsuit filed by former UCLA basketball star Ed O'Bannon against the NCAA seeking class certification and a concussion lawsuit filed against the NFL by more than 4,000 former players.

"For those that believe concussion litigation against the NFL is big, they haven't seen anything yet compared to the prospective action against the NCAA," says Marc Edelman, an associate professor of law at the City University of New York and adjunct professor teaching sports law at Fordham. "In my mind, concussion litigation against the NCAA has a far greater likelihood of succeeding than concussion litigation against the NFL."

The O'Bannon lawsuit was filed in 2009 and awaits a ruling from U.S. District Court Judge Claudia Wilken on whether it will be certified as a class action. That lawsuit - which names as co-defendants video-game manufacturer Electronic Arts and Collegiate Licensing Co., a trademark licensing firm - alleges the defendants conspired to set at zero the compensation football and men's basketball players could receive from the use of their names, likenesses and images while they are in school.

"One of the issues I think really should be troubling for all of college sports, especially big-time college sports, is your major revenue-generating sport is right now at the center of both these lawsuits," says Richard Southall, director of the College Sport Research Institute at the University of South Carolina.

"The concussion (case) is kind of underneath the surface ... or not getting as much publicity as the O'Bannon one, but it may be every bit as damaging to the collegiate model which is predicated on big-time football."

The lawsuits already have had an impact on the NCAA, as Moody's Investors Service downgraded the association's credit outlook to "negative." While Moody's affirmed the NCAA's credit rating of As2, its third-highest mark, it said the lawsuits "reflects increasing litigation and regulatory risks that could potentially alter the NCAA's operations."

Arrington says he has been accused of pursuing the case for money. Bill collectors continue to call him for medical expenses he incurred from his concussions, he says, costs not covered by Eastern Illinois or the NCAA. His assistance payments are not nearly enough, he says.

"$430 a month is really nothing for a family," says Arrington, who, with girlfriend Noel Lucero, has three children age 7 or younger.

NCAA defends record

The plaintiffs say the NCAA has a duty to protect student-athletes, a principle that has been core to the association's mission since it was founded in 1905 in response to serious head injuries in football.

The NCAA asserts that mission has not changed.

Contacted by USA TODAY Sports, NCAA spokeswoman Stacey Osburn reiterated a statement released last weekend after the plaintiffs filed their motion.

"Student-athlete safety is one of the NCAA's foundational principles," the statement read. "The NCAA has been at the forefront of safety issues throughout its existence, and the Association has specifically addressed the issue of head injuries through a combination of playing rules, equipment requirements and medical best practices. Despite this new filing, we continue to believe our policies and rules address student-athlete safety."

At the crux of the plaintiffs' case is that commonly accepted protocols set by National Athletic Trainers' Association, the American College of Sports Medicine and international conferences on concussions in sports, offered detailed guidance on baseline testing, treatment and return-to-play guidelines - yet none had been accepted by the NCAA.

Robert Cantu, a leading concussion expert, neurosurgeon and medical director of the National Center for Catastrophic Sports Injury Research, filed a motion of more than 200 pages in support of the plaintiffs' action. In it, he writes, "Across all aspects of this standard protocol, it is clear the NCAA failed to require (much less explain) appropriate concussion management practices."

The association requires schools to have a concussion management plan in place, but the legislative change that didn't get passed until 2010, and the plaintiffs allege the NCAA does not enforce the rule.

"The NCAA did not exercise, nor require its member institutions to exercise, the ordinary reasonable care that would be expected in the care of student-athletes that suffer concussions, given the undertakings the NCAA made regarding safety of student-athletes," Cantu wrote.

Internal NCAA emails show that a school that failed to follow a concussion management plan would be guilty of a "secondary" violation, the same category as infractions such as a coach who inadvertently calls a recruit or accepts a Facebook friend request during no-contact periods.

In a deposition, Klossner, said he didn't know of any schools that had been punished for not enforcing the rules on concussions.

Survey shows gaps

Arrington looks at the unprecedented sanctions leveled against Penn State following the Jerry Sandusky sexual abuse scandal and wonders why more can't be done by the NCAA to get schools to enforce concussion management plans.

"Y'all got the ability to have sanctions on people like that. Why can't you have sanctions in terms of not protecting student-athletes and the product that we are?" he says.

"If a booster would have given me money to pay my doctor bills, there would have been some sanctions then."

Without return-to-play guidelines, decisions are left up to the schools. Although generally accepted protocols recommend not returning athletes to play the same day if they exhibit signs and symptoms of a concussion or are diagnosed with one, a 2010 survey of certified athletic trainers conducted by the NCAA found nearly half acknowledged their athletes had returned to play the same day.

Of the 512 responses the NCAA received, representing nearly half the schools that received the survey, 39% said their school did not have established return-to-play guidelines.

In December 2009, the Committee on Safeguards and Medical Aspects of Sports (CSMAS) recommended a playing rule for concussion management in all sports. In response to complaints from athletic trainers about the proposed rule, Dean Crowell, an assistant football athletic trainer at Georgia, responded, "My thought on this is that it is unfortunate that a playing rule would have to be created to legislate a standard of care that is already in our NATA position statement, but we all know that there are times where athletes are returned to games with concussions. I personally have seen an athlete knocked unconscious and return in the same quarter in recent years."

Arrington's career ended in 2009 during his senior season as a hit sent the defensive back stumbling to the sidelines. By that time, he had suffered at least five documented concussions. He played that season while taking medication for seizures, he said.

To Steve Berman, an attorney for the plaintiffs and managing partner at Hagens Berman in Seattle, the legislation is an example of the NCAA passing the buck. Its 400-page manual contained, until this year, a rule regarding giving recruits cream cheese on bagels.

"It regulates with excruciating detail what goes on in every sport, but when it comes to concussion management they say it's up to the schools," he says. "They were trying to shirk their responsibility."

"They didn't want to get sued if they got it wrong."

Plaintiffs cite emails

Perhaps damaging to the NCAA's defense are its own documents. Emails included as exhibits in the plaintiffs' filing show Klossner's frustration with trying to get guidelines passed, as well as other NCAA staffers ridiculing him.

In a December 2009 email, Abe Frank, the NCAA's managing director of government relations, wrote to Klossner, "The landscape has clearly changed around us, at the professional and high school levels, so the focus will remain on us as long as we do not have a rule that keeps players out (at least the same day) after a hit to the head."

At a meeting of the Playing Rules Oversight Panel in January 2010, the group rejected a recommendation from the CSMAS panel for a common sport playing rule for concussions. Klossner reported back to the health and safety group, "What an uphill task we have now."

Expecting pressure from the government, Frank inquired later in 2010 whether concussion recommendations at the youth level exceeded what was required at the college level.

In response, Klossner wrote, "Well since we don't currently require anything all steps are higher than ours."

To Joseph Siprut, an attorney for the plaintiffs who filed the orginal suit on Arrington's behalf, the documents confirm the narrative he expected to find.

"The documents leave little doubt that the NCAA literally turned a blind eye to the issue," says Siprut, who is managing partner at Siprut PC in Chicago.

The NCAA's Injury Surveillance System estimated athletes suffered 29,225 concussions from 2004-09 with 16,277 in football. The plaintiffs also highlight the NCAA's partial funding of concussion studies by Kevin Guskiewicz and Michael McCrea with results published as early as 2003.

"They were aware of all these studies," Berman says. "They collected them, and they didn't follow them. So their own documents were very damning in my view."

'Life on hold'

Edelman argues the concussion case against the NCAA has a greater chance of succeeding than the one against the NFL because of student-athletes' lack of power. Unlike NFL players, they do not collectively bargain with the NCAA and set acceptable labor practices.

The case could be just as threatening to the NCAA's way of doing business as the O'Bannon lawsuit, legal experts say.

"Because the NCAA athletes are not represented in any way, as well as the fact that the NCAA purports to be the party protecting the student-athletes' interests, their duty of care to do just that is elevated enough that their obligation to protect student-athletes from head injuries is arguably higher than a collection of individual employers such as the NFL teams," Edelman said.

Edelman says the two cases "show a movement by retired student-athletes who attempt to overturn a college sports system in which college sports teams keep themselves 100 percent of the revenues and the student-athletes are left, upon graduation, to incur all the physical risks that come with having played college sports."

Despite his issues, Arrington received his degree in recreation administration. He dreams of putting it to use, running his own community center that can help at-risk athletes with homework and test prep. He'd like to have a chance to instill in them the same work ethic that pushed him to graduate and to be team captain.

"I did that, but I also happened to get this type of injury, a brain injury," he says. "It stops your life. It puts your life on hold."